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State of New Jersey v. Derick Mack

March 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DERICK MACK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-04-0819.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 20, 2011

Before Judges Messano and Yannotti.

Defendant Derrick Mack appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing.*fn1 He raises the following points for our consideration:

POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS

A. THE TIME BAR SHOULD BE RELAXED ON THE GROUNDS OF EXCUSABLE NEGLECT

B. THE TIME BAR SHOULD BE RELAXED IN THE INTEREST OF JUSTICE POINT II - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL POINT III - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL POINT IV - THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND RENDERED THE TRIAL UNFAIR POINT V - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 POINT IV - THE LOWER COURT RULING THAT DEFENDANT DID NOT PROVE EXCUSABLE NEGLECT SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS IN SUPPORT OF THE PCR PETITION

Defendant filed a pro se supplemental brief. We discern his essential argument to be that counsel at all levels provided ineffective assistance because his PCR petition "was never time-barred."

We have considered these contentions in light of the record and applicable legal standards. We affirm.

I

In 1994, following a jury trial, defendant was convicted of three counts of first-degree murder, N.J.S.A. 2C:11-3(a); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The jury decided not to impose the death penalty, and, on March 27, 1995, defendant was sentenced to three consecutive life terms with thirty-year parole disqualifiers for the murder convictions; three concurrent twenty-year extended terms with ten-year parole disqualifiers for the possession of a weapon for an unlawful purpose convictions; and a concurrent five-year term for the unlawful possession of a weapon conviction.

We affirmed defendant's convictions on appeal but remanded the matter for re-sentencing because the trial court improperly imposed multiple extended-term sentences. State v. Mack, No. A-6842-94 (App. Div. Aug. 2, 1999) (slip op. at 19-20). On October 7, 1999, the trial court re-sentenced defendant consistent with our order. The Supreme Court denied defendant's petition for certification on January 28, 2000. State v. Mack, 163 N.J. 13 (2000).

On May 2, 2001, defendant filed a petition for post-conviction relief, along with a motion to deem the filing nunc pro tunc to July 19, 2000. The State argued the petition was untimely, and defendant failed to demonstrate excusable neglect. The PCR judge granted defendant's motion, deemed the petition to have been filed on July 19, 2000, but ...


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